Freedom's Path At Dayton v. Dayton Metro. Hous. Auth., Case No. 3:16-cv-466

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Docket NumberCase No. 3:16-cv-466
Decision Date13 June 2018


Case No. 3:16-cv-466


June 13, 2018

District Judge Walter H. Rice
Magistrate Judge Sharon L. Ovington


I. Introduction

Plaintiff Freedom's Path at Dayton brings this action alleging Defendant Dayton Metropolitan Housing Authority (DMHA) d/b/a Greater Dayton Premier Management (GDPM) "blocked funding for and financing of 60 units of project-based funded affordable housing for veterans ..." in violation of the American with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101, et seq., and the Fair Housing Act of 1968, as amended, 42 U.S.C. § 3601, et seq.

This case is presently before the Court upon Defendant's Motions for Protective Orders (Doc. #s 27, 28), Plaintiff's Responses in Opposition (Doc. #33, 34), Defendant's Reply (Doc. #35), Plaintiff's Motion to Compel (Doc. #29), Defendant's Response in Opposition (Doc. #32), and Plaintiff's Reply (Doc. #36).

II. Background

To understand the parties' discovery disputes requires a brief look into the history

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of the case. Plaintiff's goal is to use Veterans Affairs Supportive Housing (VASH) project-based rental assistance to house veterans, most of whom are disabled, in a development known as Freedom Path-Dayton VA on the VA Medical Center's campus in Dayton, Ohio. Id. at ¶s 25, 28. To reach this goal, Plaintiff needs Defendant's support "because only [Public Housing Authorities] such as GDPM may apply for a VASH allocation." Id. at ¶27.

On April 9, 2013, GDPM's Interim Chief Executive Officer, Alphonzio Prude, sent Defendant a letter extending GDPM's "support for Plaintiff's new development on the campus of the VA Medical Center and committed thirty-three ... project-based vouchers." Id. at ¶28. Plaintiff understands this as GDPM's initial affirmative commitment to support Plaintiff's efforts to obtain VASH financing. (Doc. #6, PageID #53, ¶29). But since this initial commitment, GDPM "has balked at providing continued support to Plaintiff." Id. at ¶30.

In December 2015, Plaintiff asked GDPM to apply for project-specific, project-based VASH vouchers on Plaintiff's behalf. Defendant declined to do so and, instead, "proposed applying for VASH Project-Based Rental Assistance on behalf of itself...." Id. at ¶s 31-32. "By applying for VASH [assistance] ... on its own behalf ... and by not applying in a timely manner for Plaintiff's specific, project-based VASH vouchers, GDPM jeopardized HUD's award of 25 points that would give Plaintiff enough points for its project to be selected ...." Id. at ¶s 31-32. According to Plaintiff, Defendant GDPM provided "various inconsistent, mistaken, or shifting rationales for its indecision...." Id. at ¶33. Plaintiff alleges, for example, GDPM explained, in part, that Prude's letter was

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inconsistent with federal law, and GDPM "has already exceeded its overall allocation of vouchers (this in incorrect—a HUD VASH voucher waiver to the cap is available)[.]" Id.

On September 2, 2016, Plaintiff's counsel sent a detailed letter to GDPM asking it to apply to HUD on Plaintiff's behalf for 60 VASH vouchers before the impending September 9, 2016 deadline. Id. at ¶34 and Exhibit B, PageID #64. Plaintiff asked Defendant to "[p]lease treat this as a request for reasonable accommodation under the Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act, and take whatever steps necessary to accommodate our request...." Id. Plaintiff asserts that GDPM denied the requested accommodation. (Doc. #6, PageID #54, ¶34).

Plaintiff seeks (1) declaratory relief concluding that GDPM violated the FHA and ADA; (2) an Order mandating GDPM to apply to HUD on Plaintiff's behalf for VASH project-based rental assistance or, alternatively, to grant Plaintiff a reasonable accommodation; (3) preliminary and permanent injunctions prohibiting GDPM from violating the ADA and FHA; and damages "for the harm it experienced as a result of GDPM's discriminatory and dilatory practices." Id. at ¶60.

III. Standard of Review

Under the Federal Rules of Civil Procedure, the scope of discovery is "traditionally quite broad." Lewis v. ACB Bus. Servs, Inc., 135 F.3d 389, 402 (6th Cir. 1998) (citing Mellon v. Cooper-Jarrett, Inc., 424 F.2d 499, 501 (6th Cir. 1970)).

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant

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information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). But, "this desire to allow broad discovery is not without limits and the trial court is given wide discretion in balancing the needs and rights of both plaintiff and defendant." Scales v. J.C. Bradford & Co., 925 F.2d 901, 906 (6th Cir. 1991).

A party may file a motion to compel discovery when a deponent fails to answer a question under Rules 30 or 31. Fed. R. Civ. P. 37(a)(3)(B). "[T]he proponent of a motion to compel discovery bears the initial burden of proving that the information sought is relevant." Mayer v. Allstate Vehicle & Prop. Ins. Co., No. 2:15-cv-2896, 2016 WL 1632415, at *2 (S.D. Ohio Apr. 22, 2016) (Deavers, M.J.), objections overruled, 2016 WL 2726658 (S.D. Ohio May 10, 2016) (Marbley, D.J.) (quoting Guinn v. Mount Carmel Health Sys., No. 2:09-cv-226, 2010 WL 2927254, at *5 (S.D. Ohio July 23, 2010) (Kemp, M.J.); Clumm v. Manes, No. 2:08-cv-567 (S.D. Ohio May 27, 2010) (King, M.J.)); see also United States ex rel. Shamesh v. CA, Inc., 314 F.R.D. 1, 8 (D.D.C. 2016) ("In cases where a relevancy objection has been raised, the party seeking discovery must demonstrate that the information sought to be compelled is within the scope of discoverable information under Rule 26."). If the proponent meets its initial burden, then "the party resisting production has the burden of establishing that the information is either not relevant or is so marginally relevant that the presumption of broad disclosure is outweighed by the potential for undue burden or harm." Pillar Title Agency v. Pei, No.

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2:14-cv-525, 2015 WL 2238180, at *3 (S.D. Ohio May 12, 2015) (Kemp, M.J.) (citing Vickers v. Gen. Motors Corp., No. 07-2172 M1/P, 2008 WL 4600997, at *2 (W.D. Tenn. Sept. 29, 2008)).

When a party seeks to limit discovery, it may file a motion for protective order. Federal Rule of Civil Procedure 26(c) provides that a "court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense ...." "To justify restricting discovery, the harassment or oppression should be unreasonable, but discovery has limits and ... these limits grow more formidable as the showing of need decreases." Serrano v. Cintas Corp., 699 F.3d 884, 901 (6th Cir. 2012) (quoting 8A CHARLES ALAN WRIGHT & ARTHUR R. MILLER ET AL., FEDERAL PRACTICE AND PROCEDURE § 2036 (3d ed. 2012)) (internal quotation marks omitted). To prevail on a motion for protective order, the party must "show that the requested discovery does not fall within Rule 26(b)(1)'s scope of relevance (as now amended) or that a discovery request would impose an undue burden or expense or is otherwise objectionable." Bros. Trading Co. v. Goodman Factors, No. 1:14-CV-975, 2016 WL 9781140, at *2 (S.D. Ohio Mar. 2, 2016) (Litkovitz, M.J.) (quoting Mckinney/Pearl Rest. Partners, L.P., 322 F.R.D. 235, 242) (N.D. Tex. 2016)).

IV. Discussion

A. Protective Orders

Defendant DMHA filed two motions for protective orders barring the depositions of five individuals. In its first motion, Defendant DMHA sought a protective order barring the deposition of its former interim CEO, Jeff Rieck. (Doc. #27). District Judge

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Walter H. Rice overruled Defendant's Motion for Protective Order Barring the Deposition of Jeff Rieck (Doc. #27) as moot.

In its second motion for protective order, Defendant DMHA seeks to bar the depositions of third-party witnesses Alphonzio Prude, De Carol Smith, Phyllis Smelkinson, and Raymond Keyser. Defendant asserts that (1) the depositions are irrelevant to any claim or defense; (2) the depositions would subject DMHA to severe undue burden and expense; and (3) none of the depositions meet the proportionality requirement of Rule 26(b)(1). (Doc. #28).

i. Relevance under Rule 26(b)(2)

Defendant asserts that the deposition of Mr. Prude—a former interim CEO of DMHA—is "largely irrelevant" because his "only involvement in the events giving rise to Plaintiff's lawsuit pertains to the letter that Prude authored in his capacity as interim CEO of DMHA in April 2013 expressing the agency's purported support for Plaintiff's request for vouchers for its housing project." (Doc. #28, PageID #227). Defendant claims to be "categorically barred [from] satisfying Plaintiff's reasonable accommodation request through use of the Prude letter as a matter of law." Id. at 228. The law Defendant refers to is 24 C.F.R. § 983.51. And, this requires some additional information: Under 24 C.F.R. § 983.51(b), there are two methods by which a public housing authority (PHA) can select project-based voucher (PBV) proposals: (1) request PVB proposals; or (2) rely on previous competition. A public housing authority—such as Defendant in the present case—must have an administrative plan that describes "the

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procedures for owner submission of PBV proposals and for PHA selection of PBV proposals." Id. § 983.51(a).

Defendant asserts that its administrative plan indicates it may only select project-based voucher proposals using the first meth...

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